Date: 20040510
Docket: IMM-1135-03
Citation: 2004 FC 681
Ottawa, Ontario this 10th day of May 2004
Present: The Honourable Madam Justice Heneghan
BETWEEN:
VLADIMIR ZALIPYATSKIKH
Applicant
and
THE SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Vladimir Zalipyatskikh (the "Applicant") seeks judicial review of the decision of Mr. Ken Moran, the Pre-Removal Risk Assessment Officer (the "PRRA Officer"). In his decision dated February 3, 2003, the PRRA Officer rejected the Applicant's Pre-Removal Risk Assessment application.
[2] The Applicant, a citizen of Russia, was born in Bashkortosan. Bashkortosan is one of the twenty-one republics which, together with Russia, constitutes the Russian Federation.
[3] The Applicant claimed Convention refugee status in Canada in approximately August, 2000. At that time, he was employed as a crew member on board a Russian fishing trawler, the F.V. "Bizon". He claimed that the owners of the "Bizon", a company called Sarmat Nord, were part of the mafia. Following a hearing before a panel of the Immigration and Refugee Board, Convention Refugee Determination Division, his claim was dismissed. The Board found that the Applicant was not a Convention refugee and that the substance of his claim, including allegations of mistreatment on board the "Bizon" and threats to his life, related to criminality and did not support a claim for Convention refugee status.
[4] The Applicant did not seek judicial review of the negative determination of his Convention refugee claim but submitted an application on December 17, 2001 for consideration under the Immigration Act, R.S.C. 1985, c. I-2, as amended as a member of the Post-Determination Refugee Claimants in Canada class ("PDRCC"). By operation of section 346(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227, that application became an application for protection pursuant to sections 112 to 114 of the current legislation governing immigration and refugees, that is the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended (the "Act").
[5] In his decision, the PRRA officer states he considered the Applicant's application in reference to both sections 96 and 97 of the Act. Section 96 deals with Convention refugees. The PRRA Officer acknowledged the decision of the Board and accepted its conclusion that the Applicant had failed to show that there was a nexus between the basis of his claim and the grounds for claiming Convention refugee status. He was not satisfied that there was a reasonable or serious possibility of future persecution of the Applicant in Russia on the basis of the grounds set out in section 96. The PRRA Officer referred to the decision of the Supreme Court of Canada in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 and said that the Applicant would need to satisfy him that there was a complete breakdown in the state and the state is unable to provide protection.
[6] The PRRA Officer then proceeded to consider section 97(1)(a) and (b) of the Act. He considered the documentation submitted by the Applicant as well as his submissions about harm to his family members in Bashkortosan. The Officer was not persuaded that the occurrences of abuse were the result of persecution based on nationality or religion. He considered that attempts to injure the Applicant would be criminal acts and subject to intervention by the police. The PRRA Officer was not satisfied that there was a complete breakdown of state institutions that would render the state incapable of providing protection to the Applicant.
[7] The dispositive issue in this application is whether the PRRA Officer committed a reviewable error in assessing the Applicant's application or breached the principles of procedural fairness.
[8] The Applicant argues that the PRRA Officer's decision respecting the availability of state protection is unreasonable and based on a misunderstanding of the test set out in Ward, supra. There the Court said the following at pages 724-725:
...clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus...it should be assumed that the state is capable of protecting a claimant.
[9] According to this passage, the Supreme Court recognized that there is a rebuttable presumption that a state will protect its citizens but a person must do more than simply allege a lack of state protection, he must submit objective evidence to support the allegation.
[10] In the present case, the PRRA Officer considered the evidence before him, including documentary evidence about the stability of state institutions. He reviewed that evidence and concluded it did not support the allegations of the Applicant. He made a factual finding which was reasonably open to him. Furthermore, I note that Ward, supra, is generally applied to determination of Convention refugee status. That issue has already been decided against the Applicant and cannot be revisited in the context of a Pre-Removal Risk Assessment process.
[11] The Applicant also argues that the PRRA Officer failed to accord him the duty of fairness described in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. I see no merit in this argument and there is nothing in the motion record to show that there was any breach of procedural fairness.
[12] In the result, the application for judicial review is dismissed. There is no question for certification arising.
ORDER
In the result, the application for judicial review is dismissed. There is no question for certification arising.
"E. Heneghan"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1135-03
STYLE OF CAUSE: VLADIMIR ZALIPYATSKIKH v.
SOLICITOR GENERAL
PLACE OF HEARING: HALIFAX
DATE OF HEARING: APRIL 14, 2004
REASONS FOR ORDER : HENEGHAN J.
APPEARANCES:
LEE COHEN FOR APPLICANT
LORI RASMUSSEN FOR RESPONDENT
SOLICITORS OF RECORD:
LEE COHEN, HALIFAX FOR APPLICANT
MORRIS ROSENBERG FOR RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA